Fair use and file sharing in research and education

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Description/Abstract

This work was inspired by the well-ventilated current problems around the use of digital filesharing technologies and their promotion of infringement of copyright leading to the allegeddestruction of entertainment industries. Different legal systems have applied differentanalyses to such problems, and there is no clear and coherent answer to the question ofwhether file sharing, especially in the form of peer-to-peer (P2P), is legal. The particularfocus of this thesis flows from the realisation that litigation around file sharing hasuniformly explored it from the perspective of users downloading entertainment materialssuch as music and videos. Comparatively little attention has been paid to whether researchand educational users have, or should have, rights to use the same digital file sharingtechnologies to access copyright materials important to their work. If digital file sharing isdeclared illegal by the courts at the behest of the entertainment industries, then what willhappen to research and educational users of these networks?

To explore this key problem, this thesis focuses on how fair use doctrine, the most importantexception and limitation to copyright, has transferred from the traditional copyrightenvironment into the context of digital file sharing. By undertaking a study of relevantlegislation and cases, such as the well known Napster, Grokster and MP3.com, the “who”issue, namely, who is the party entitled to benefit from a fair use defence will be highlighted.

Having established that fair use as a defence operates ineffectively in the digital file sharingenvironment, the thesis then looks at existing alternative or “fared” use models, andparticularly the disadvantages of “fared” use system in serving research and educational filesharing. Finally the thesis turns to what is termed the “voluntary model”: a model in whichcopyright owners make their works available to academic users for free, via an institutionalrepository, the authors gaining non-pecuniary benefits while the commercial publisher beingcut out as a “middleman”. Although future work to develop the details of this approachwould be required, the thesis asserts this is a promising way towards ensuring access tocopyright works in research and education thus benefiting society, whilst at the same timeestablishing fair compensation to authors for their efforts.